Card Range To Study

318 Cards in this Set

1.What is the classification
2.What is the appropriate level of scrutiny?
3.Does the government action meet the level of scrutiny?

EP as a protection of a fundamental right

1. Skinner v OK- Right to procreate is fundamental and the court struck down a sterilization law as violative of EP-
a. Court used it as a means to avoid SDP, but the result is the same- IF the court finds a fundamental right then SS applies and the person will probably win-

Romer v. Evans

CO passed an amendment stating that no city could establish gays/lesbians as a protected class for the purpose of civil rights laws
1. Here the court is only applying rational basis review-
a. Two reasons why this law fails rational basis-
i. Imposes a broad disability on a single named group
ii. Breadth is discontinuous with its stated purpose-
b. Scalia dissent- Colorado is merely trying to disfavor sexual conduct which it can do. Stopping homosexual conduct is a legitimate state purpose.

Rational basis review-:

default level of scrutiny; every law must meet at least rational basis review. Strong presumption in favor of government when applied;  must clearly show arbitrariness or irrationality in law.

Laws being challenged under Rb must have what?

Legitimate purpose=
Can include the police power but is not limited to that

Dukes (1976): Ct upheld ordinance that banned pushcart food vendors in French Quarter except those who had continuously operated there for more than 8 yrs, accepting  claim that cart interfere w/ charm of city thereby indirectly hurting city economy; distinction was okay b/c ct reasoned that newer vendors had lower reliance interest in carts.

Dept. of Ag. v. Moreno (1973)

): congressional purpose of discriminating against hippies not accepted as legitimate purpose for limiting access to food stamps. “If the constitutional conception of equal protection of laws means anything, it must at the very least mean a bare congressional desire to harm a politically unpopular group cannot constitute a legitimate government purpose

dOES THE COURT LOOK TO THE ACTUAL PURPOSE OF THE LAW UNDER rB?

no- ct willing to accept any conceivable legitimate purpose for law as sufficient even if it is not the government’s actual purpose. Actual purpose is irrelevant.

US RR Retirement Board v. Fritz

): CT upheld fed law designed to prevent retired RR workers from receiving benefits from both SSA and the RR system. “Where there are plausible reasons for Congress’ action, our inquiry is at an end. It is, of course, constitutionally irrelevant whether this reasoning in fact underlies the legislative decision b/c this ct never has insisted that a legislative body articulate its reasons for enacting a statute.”
a. Brennan Dissent- Wants to look to the actual Congressional purpose.
2. Impact: if any conceivable purpose is sufficient, very few laws will fail the rational basis test; government lawyers can always create a conceivable purpose.

i. Dept of Ag v Moreno-

Court accepts as a conceivable purpose the desire to cut down on fraud, but still strikes down the law b/c it is not a rational effort to combat fraud-
1. Rehnquist dissent- It is rational to think that Congress could have thought that denying these benefits would stop people from forming households simply to take advantage of the food stamp program

ii. City of Cleburne v. Cleburne Living Ctr (

ordinance requiring special permit for retard group home declared unconstitutional. The city offered many justifications such as that middle school children across street would ridicule residents, but ct determined that indulging prejudices is not a rational purpose. Moreover, b/c no other type of group living home was required permit, ct concluded that the requirement was motivated purely by retard prejudice. NB: rational basis used for mental disabilities; affirmed in U of AL v. Garrett (2001).

1. Tolerance for Underinclusiveness UNDER RB

substantial underinclusiveness is allowed b/c the government may address a problem in phases

a. RR Express Agency, Inc. v. NY

ct upheld ordinance banning all advertisement on truck sides unless the ad is for the business of the truck’s owner.  had argued this was irrational in that distractions are not decreased, but ct rejected argument saying that government might have perceived some difference among the ads.

ct upheld regulation that prevented methadone clinic patients from holding jobs w/ the transit authority. The ct acknowledged that most in these programs were perfectly safe and the exclusion of all methadone addicts was substantially overinclusive but nonetheless upheld the law as sorting through the addicts would be more costly

Discrimination receiving RB review

Age, disability, SO, wealth

1. MA Board of Retirement v. Murgia

): SC upheld MA law requiring cops to retire at 50. SC reasoned that elderly had not been subject to history of purposeful unequal treatment and that elderly are not discrete insular class needing protection but rather a stage that each of us would one day reach. Rationally relationship b/c presumably abilities associated w/ police work diminish w/ age.

2. Vance v. Bradley

): SC upheld fed law requiring retirement at 60 for foreign service officers. Challengers failed rational basis as they were unable to show that Congress had no reasonable basis for believing that overseas service more rigorous; government had legitimate interest in having a vigorous foreign service and he law was rationally related to that end.
a. NB: Age Discrimination in Employment Act now prohibits age discrimination and specifically outlaws mandatory retirement ages.

2. Heller v Doe-

Court held that state law allowing MR's to be committed by clear and convincing evidence while requiring an RD standard for mentally ill people was ok-
a. Easier to diagnose MR's, less aggressive treatment,
b. Dissent said that this failed RB b/c it was not easier to diagnose MR and it involved a substantial loss of freedom-

a. Griffin v Illinois & Harper v VA(

)- Court leaned toward a standard higher than RB for D based on wealth

a. Dandridge v Wiliams-

- Court ok'd a law putting a cap on welfare benefits. Court applied RB. Was rational to put a cap on the way that the state handed out benefits-

San Antonio School v Rodriguez-

- Court used RB to uphold a bill using property tax to fund schools. P's could not demonstrate that there were more poor people in the poor districts or that it has resulted in a deprivation of the benefits

c. Maher v Roe-

a. Court said that it was ok to deny funding for abortions. Financial need is not a suspect class.

2. Lawrence v texas-

Court used DP to strike down the law and did not indicate which level of scrutiny they were using-

i. Constitutional Provisions Protecting Slavery:

Three-fifths Compromise: Art. I, §2 requires apportionment of House based on whole number of free persons and 3/5 of slaves.
2. Importation: Art. I, §9 prevented Congress from banning importation of slaves until 1808; Art. V protected provision from amendment.
3. Fugitive Slave Clause: Art. IV, §2 provides for return of slaves who may escape into another state.

1. Prigg v. PA (

): SC declared unconstitutional PA law that prevented the use of force or violence to remove any person from the state to return him to slavery. Constitution prevented states from interfering w/ return of fugitive slaves.

Dred Scott v. Sandford

SC declared MO Compromise unconstitutional and broadly held that slaves were property not citizens, hence, Π could not evoke federal court diversity of citizenship jxn. MO Compromise unconstitutional b/c Congress could not grant citizenship to slaves or their descendants as doing so would be a taking w/o just compensation.

Korematsu v US

Court recognizes SS for classification based on race. Denied relief here to show deference to the military

i. Race-Specific Classifications that Disadvantage Minorities

expressly impose a burden or disadvantage on people b/c of race/national origin. These have been found unconstitutional on every occasion w/ only 1 exception.

Strauder v. WV

): SC declared unconstitutional WV law that limited jury service to white citizens b/c it expressly singled out and disadvantaged blacks.

Racial classification burdening both whites and minorities

Originally upheld but now not allowed

Pace v Alabama-

- Upheld a law that gave stricter punishments for adultery if it was between the races b/c they said it did not discriminate based on race

a. McLaughlin v Florida-

- court overturned a FL law banning the habitual occupation of a boarding room by interracial couples. State offered no reason why a race neutral law would not perform the same function as the race one-

b. Loving v Va

- court convicted an interracial couple and told them they had to leave the states for 25 years. Lovings appealed to the Dc circuit and the court upheld the convictions-Dc court cited as reasons for the law the prevention of the mongrelization of the races and that the control of marriage is a state issue based on the 10th amendment
i. State argues that since the law punishes whites and blacks equally for violation of the law then it has to be o
ii. In order to be upheld the statute must be necessary to the accomplishment of some permissible state objective independent of racial D.B/c the state only restricts the intermarriage with white people it clearly is a product of white supremacy and has no justification

c. Palmore v Sidoti

- Court took away custody from a mother because she married a black man. Lower court reasoned that the kid would suffer from social pressures- There is a risk that a kid living in a bi-racial home will be subject to pressure
i. Con can not control these prejudices but it can also not tolerate them.
ii. Law can not give effect to private biases

Laws requiring the separation of the races

Post reconstiruction/14th amendment the court upheld the SBE doctrine until it was struck down in B v BOE

Plessy v. Ferguson

SC upheld LA law that required RR companies to provide separate but equal accommodations for whites and blacks
a. Brown majority: Essentially, the ct reasons that if school segregation is constitutional, then so is this. In considering whether these laws attach a badge of inferiority to blacks, the ct determined that if that was so, it is so “solely b/c the colored race chooses to put that construction upon it.
b. Harlan dissent: the purpose of the law is not to separate races, but rather to exclude blacks from white coaches. There are no castes in the Constitution: “Our Constitution is color-blind, and neither knows nor tolerates classes among citizens

Initial attacks on P V F- COurt struck down segregation laws.
Mo ex rel Gaines v Canada- Court struck down a Mo law paying for blacks to go to an out of state law school instead of admitting them to Mo. Consideration of what the state provided for whites and not blacks
Sweatt v Painter- court forced UT to integrate b.c the law school for blacks was clearly not equal
McLaurin v Ok Board of Regents- - Court held that once a school was forced to admit blacks it could not segregate them b.c it had a bad effect on their ability to learn,

Brown v. Board of Education

): segregation in public schools declared unconstitutional. The ct begins by noting that the constitutionality of segregation cannot be determined by looking to the framers’ intent as the sources are inconclusive and public education had changed remarkably in the past 100 yrs. The ct ultimately determines that state mandated segregation stamps black children as inferior and impairs their educational opportunities. This was w/ psychological findings.

Facially neutral laws with DI

There must be a showing of intent to discriminate

Washington v Davis-

- Case challenging the validity of a civil service test for police applicants-Court found three things-# of black officers was not proportionate to the numbers of blacks in the population, More blacks than whites fail the tests, test has not been validated-
a. Court has not held that a law with a DI absent a intent violates the EPC
b. Court does not see why a law that is neutral can deny EP when it is pursued for a valid reason-
c. Court does not wan to adopt the Title Vii test
d. To strike down this law would invalidate a lot of good rules
e. Brennan/Marshall dissent- State should have to prove that the test measures job performance or job related skills

McClesky v Kemp-

Court refuses to find an EP violation when the state's DP system seems to execute more AA's- No finding by the court of an intent to D- Lots of different people giving input in these decisions

Proof of discriminatory purpose enough for EP?

Not enough. THERE MUST BE AN EFFECT AS WELL

Palmer v Thompson

Did the closing of the pools instead of integrating them violate EP?
a. NO duty on the gov’t to operate pools. NO problem of segregation
b. Court has never held that the EPC is violated by a law that has a bad motivation but no DE
c. Here the P’s are right that the city can not use invalid reasons to justify an EP violation. There is no EP violation here though
d. If they can show a denial of equal access then there is a violation there is not that here
e. Douglas dissent- Here the blacks are now in a position where htye can not protest segregated facilities without fear that they will lose the facility in toto-If the city performs an action in order to continue racial apartheid or to avoid integration then it is invalid

Is it enough if the state acts knowing that there will be a DI?

No, that must have been the purpose for their act

1. Personnel administration v Feeney-

Mass has a preference for veterans over non-veterans in state jobs-P’s argued that the legislature intends the foreseeable result of its actions, here that a lot of women would be kept out of public jobs
a. Discriminatory Purpose requires more than just knowledge of consequences. Requires that the leg took the action because of not in spite of-
b. Nothing in the record shows that the state took the action in order to D against women-Law is merely a preference for veterans over non-veterans not men over women

Village of Arlington Heights v Metro Housing-

Not enough that the zoning board knew that there was a possible DE to get to intent in a zoning decision

Yick Wo v Hopkins-City denied all petitions to operate laundries by Chinese- Gomillion v Lightfoot-City redrew town map into a 28 sided figure in order to exclude all but 4 blacks in the city

Historical background cases for DP

1. Guinn v. US (1915): OK law that required literacy test for voting unconstitutional b/c whites were excluded from test b/c of “grandfather clause,” the obvious purpose was to exclude blacks.
2. Griffin v. School Board of Prince Edward County (1964): SC declared unconstitutional county’s decision, in response to segregation orders, to close public schools and to pay for children to attend segregated private schools. The sequence of events made the purpose obvious

Hunter v UNderwood

Court struck down a law banning all people who have been convicted of a crime of moral turpitude from voting down in application to minorities. Law was adopted with the intent of stopping blacks from voting

Evidence of Discriminatory Purpose

Shifts Burden: if Π produces evidence that discrimination was a substantial or motivating factor, the burden shifts to the government to prove that it would have taken the same action w/o the discriminatory motivation. If SC accepts the government explanation, rational basis is applied. If SC convinced of discriminatory purpose, then the law will be invalidated; formal application of strict scrutiny is unnecessary b/c persuading the Ct of discriminatory purpose forecloses the government’s ability to show a compelling purpose.

Level of scrutiny for racial classifications benefitting minorities

SS

1. Regents of the U. of CA v.

Π challenges UC Davis Medical School set aside of 16 slots for minorities. Four justices called for intermediate scrutiny under which the challenge failed; four others said that Title VI had been violated; Powell advocated strict scrutiny. Although Powell called for strict scrutiny, he said that it was permissible for universities to use race as a factor in admissions decisions to enhance diversity.

2. Richmond v. J.A. Croson Co.

Strict scrutiny should be used in evaluating state and local affirmative action programs. SC overturned a program that set aside 30% of public works for minority owed companies.

Metro Broadcasting v. FCC

SC held that congressionally approved affirmative action programs need only meet intermediate scrutiny. Overruled in Adarand. Was ok to emphasize diversity in programming on public television

Adarand Constructors v. Pena (

SC altered scrutiny: “federal classifications, like those of a State, must serve a compelling government interest, and must be narrowly tailored to further that interest.” However, O’Connor dispels the notion that strict scrutiny is necessarily fatal.
a. Scalia Concurrence- Making up for past discrimination can never be a compelling state interest-
b. Thomas concurrence- RD is bad no matter what and AA stamps minorities with the badge of inferiority
c. Stevens dissent- These should be allowed b/c it really is possible to tell these apart

Policy concerns supporing SS for AA

The Constitution requires that the government to treat each person as an individual w/o regard to his or her race; strict scrutiny ensures this. All racial classifications stigmatize and breed racial hostility

2. Contra strict scrutiny:

No long history of discrimination against whites, so no need for strict scrutiny. Achieving racial equality requires strict scrutiny Large difference between majority discriminating against a minority and the majority discriminating against itself. The white majority can simply eliminate the discrimination at the ballot box.

POtential reasons for an AA program

Remedying past D- This can be ok in limited situations
Enhancing Diversity- This is ok
Providing role models- Prolly not ok
Enhancing services to minority communities- Prolly not ok b/c of lack of guarantee that the services will end up in the neighborhood

i. US v. Paradise

SC upheld fed ct order, to remedy proven discrimination by AL Dept of Public Safety, that a qualified black had to be hired or promoted every time a white was hired or promoted. The remedy was justified by compelling interest of remedying discrimination.

Fullilove v. Mutznick

): SC upheld fed law that set aside public works money for minority owned businesses. SC emphasized that Congress had a long history of discrimination in the construction industry and that the program was justified as a remedy. The case has not been expressly overruled.

Croson ( in reference to D in a particular field)

An amorphous claim that there has been past discrimination in a particular industry cannot justify use of an unyielding racial quota

i. Wygant v. Jackson BOE (

This court has never held that societal discrimination alone is sufficient to justify a racial classification. Rather, the Court has insisted upon some showing of prior discrimination by the governmental unit involved before allowing limited use of racial classifications in order to remedy such discrimination.” Rejected deviating from a seniority system in order to achieve racial equality. COurt also rejects the use of AA to provde role models

b. Grutter v. Bollinger

SC held that colleges and universities have a compelling interest in creating a diverse student body and that they may use race as one plus factor, among many, to benefit minorities and enhance diversity.

c. Gratz v. Bollinger

decided on same day as Grutter, but SC rejected the Michigan’s undergrad affirmative action program, which awarded minorities a set number of points, b/c it did not give individualized treatment to applications

Techniques of Affirmative Action

1. Numerical Set-Asides (Quotas): These will be allowed, if at all, only if needed to remedy clearly proven past discrimination.
2. Using Race as a Factor in Decisions to Help Minorities: This was allowed in Grutter, however, seven of nine justices see this as no different than quotas—only O’Connor and Breyer saw a distinction.
3. Deviations from Seniority Systems: This was rejected in Wygant b/c other less intrusive goals were available that accomplished the same purpose

Gender and the level of scrutiny

Gender D gets intermediate scrutiny

Reed v Reed-

Law ranked the preference for the administrator of the estate and said that if there was a conflict between a man and a woman that the man should win out-
a. Court articulated the rational basis test but the court really was saying that gender is inappropriate. State's reason was that it was simpler to just eliminate one of the people in the running

a. Frontiero v Richardson

Male service members could claim their wives as dependants but females could not unless they prove dependency. If they have a dependant then they can get an increased quarter allowance and housing and medical benefits for the spouse
i. P argues that women are a suspect class-
1. Court agrees- Long history of discrimination from romantic paternalism, Position has improved but women still face pervasive , Immutable characteristic, No relation to actual ability
ii. Gov'ts only reason for the difference is administrative convenience. Wives are frequently dependent on the husband. No showing that they save money with this program
iii. There are higher values than speed and efficiency
iv. Powell concurrence- Case should be decided on the precedent of Reed and not declare sex a suspect class

a. Craig v. Boren

a. Craig v. Boren (1976): SC invalidated OK law that allowed women to buy alcohol at 18 but men at 21. “To withstand constitutional challenge, previous cases establish that classifications by gender must serve important governmental objectives and must be substantially related to those objectives.” Traffic was deemed an important interest, but sex discrimination was not substantially related.

b. US v. VA

): SC declared unconstitutional VMI’s exclusion of women.
i. Ginsberg majority: parties seeking to defend gender classification must “demonstrate an exceedingly persuasive justification for that action….The burden of justification is demanding and it rests entirely on the state.” The successful integration of the military academies belied any claim of the need to exclude women; hence VMI based its policy soley upon stereotypes.
1. Does this establish something like IS +?
ii. Scalia dissent: majority fails to give sufficient weight to the longstanding traditions of VMI. Were this problem significant enough, it could be resolved democratically

1. Geduldig v. Aiello

SC held no denial of EP for CA disability insurance to exclude pregnancy related disabilities but include disabilities affecting only men. SC applied rational basis review b/c the classification is “pregnant women” and “non-pregnant persons,” the first group may be exclusively women, but the 2nd group has both sexes. It passed rational basis review b/c CA has a legitimate interest in maintaining fiscal integrity for program and making choice in fund allocation. Congress has since passed statute overturning, but the case’s reasoning is still good.

Bray v. Alexandria Women’s Health Clinic

SC considered whether protesters blocking abortion clinics were engaging in a form of gender discrimination violative of fed civil rights statutes. SC evoked Geduldig saying that the classification was protesters and abortion recipients and the former comprised both sexes.

Will the court accept a law "benefitting" women that is based on a stereotype?

Probably not, but the SR cases

MS U. for Women v. Hogan (

SC declared unconstitutional MS policy of operating nursing school that excluded men. MS argument that state was attempting to remedy past discrimination was rejected; majority argued that the exclusion was based on an occupational stereotype that nursing was a woman’s job. True purpose evidenced by fact that women had never been excluded from nursing—school had excluded men since 1800s.

i. Michael M. v. Superior Ct

SC upheld CA statutory rape law that defined statutory rape as sexual intercourse w/ a woman under 18. ∆ was 17 yr old male who had sex w/ a 16 yr old girl who was not prosecuted b/c men alone are held liable. States interest is in cutting down on teen pregnancies-
1. Rehnquist Plurality- Since all of the problems fall on females it is within the authority of the legislature to publish only the participant. The punishment for males serves to roughly equalize the deterrents on the sexes. IF the state wants to pass this law, there is no reason that they should have to make it totally unenforceable by requiring that women face criminal prosecution
2. Brennan dissent- State has failed to show that punishing only males furthers the pregnancy deterrent goal
3. Stevens Dissent- Even if the law is better for enforcement, the interest in the even enforcement of the laws would outweigh the benefit

ii. Rostker v Goldberg-

- Court upholds the application of the SSA to men only-
1. Start with deference to the national gov’t- Raising and maintaining an army is an important gov’t interest-
2. Women are not allowed to fight, so men and women can be considered differently-
3. White dissent-Non-combat positions can be filled by women, higher admin burden can not justify an EP violation-

a. Califano v. Webster

): SC upheld SSA provision that calculated benefits in a more advantageous way for women. A formula that helped women constitutional b/c it “operated directly to compensate women for past economic discrimination.”

b. Schlesinger v. Bollard

): SC upheld navy regulation that required discharge of male officer who had gone 9 yrs w/o promotion but allowed women to remain 13 yrs w/o promotion. Constitutional b/c men had more opportunities for promotion, hence fair to allow women a longer period for advancement.

Nguyen v. INS

SC allowed a difference in INS rules favoring mothers over fathers b/c of the greater certainty of identity of the mother and greater maternal opportunity for establishing relationship w/ children.
i. Kennedy majority: Congress’ difference in treatment is based on significant difference between parents’ respective relationships to the potential citizen at time of birth. The law serves the substantial interest that in being sure that there is a biological relationship between parent and child and that there be a real connection to the child beyond biology.
ii. O’Connor dissent: Congress has not shown an exceedingly persuasive justification. In heightened scrutiny the court needs to test the fit and here the means do not fit the problem

E. Alienage classifications-

Discrimination based on status as a non-citizen- Generally gets SS

Another way to challenge alienage problems?

Preemption-1. Toll v Moreno- Court used preemption to strike down state law denying in state tuition to aliens-
ii. Sometimes you can use both preemption and EP
1. Graham v Richardson- Court used both Ep and preemption to strike down a state ban on welfare for non-citizens

i. Graham v Richardson

AZ passed a law making it impossible to get welfare unless you were a citizen or had lived in the US for 15 years-
1. State argues that it can do this because this is not D based on race or nationality
a. 14th amendment points to persons which includes lawfully admitted resident aliens
b. Ordinarily states get RB- Here though aliens are a discrete and insular minority and are therefore subject to close judicial scrutiny
2. Az's interest is a "special public interest" in favoring its own citizen over aliens when it comes to limited benefits
a. This is inadequate even though the state has used this rationale in the past-
b. State has an interest in preserving its resources BUT it cannot do so using invidious means-
c. Since an alien is a person then conservation is not a good enough reason-

ii. Sugarman v Dougall-

Court struck down a ban on aliens holding civil service jobs)

iii. In Re Griffiths

- Court struck down ban on alien lawyers-

iv. Examining Board v Flores de Otero

- Court strikes down ban on non-citizens as engineers-

v. Nyquist v Mauclet-

Court strikes down a ban on a limit for financial aid to citizens, those who had applied and those who intended to apply

Exceptions to SS for aliengage D

Self government and democratic processes, congressionally approved D

Self government and democratic processes

2. The court has recognized the right to exclude aliens from important non-elective executive, judicial, and legislative positions held by officers who participate directly in the formulation, execution or broad review of public policy
a. Position must involve discretionary decision making or execution of policy which significantly affect members of the political community

3. Foley v Connelie

State ban on allowing aliens to serve on the police force-
a. Police work implicates the self gov’t /democratic process and therefore gets RB
i. Here the Cops exercise a lot of discretion and there is a rational relationship b/w being a citizen and effectively policing
b. Marshall dissent- Execution of public policy must mean more than just carrying out a gov’t program

4. Ambach v Norwick-

State ban on refusing to employ aliens who refuse to apply for naturalization-
a. SG/DP applies b/c of the fundamental role that education fulfills in educating kids and preparing them for citizenship
b. Blackmun dissent- To disallow these people from teaching takes away from the educational atmosphere. If these people are qualified then they should be ok

5. Cabell v Chave-Salido-

State can ban aliens from being probation officers. PO's are cops and teachers-

Bernal v Fainter-

Struck down ban on aliens as a notary public- Notaries do not perform functions that go to the heart of representative government-

Congressionally approved D in alienage

- Federal gov'ts plenary power to control immigration required judicial deference and therefore only RB is used if Congress has created an alienage classification or if it is the result of a presidential order-

1. Matthews v Diaz-

relationship between aliens and the US has been committed to the political branches and may implicate relations with foregin powers, and involve a large amount of classifications, they are more appropriate to the legislative and executive branches-
a. Law was only upheld because it was not wholly irrational and served the legitimate interests of the federal government

Hampton v Wong-

Court refused to use RB for the decision of an executive AA because was not mandated by Congress or the President-
a. Rule was invalidated even though it would have been upheld if passed by the Congress-

1. Plyler v Doe-

- SC invalidated TX law providing free education for children of citizens and documented aliens but required undocumented aliens to pay for education. Even undocumented aliens are “persons” guaranteed DP under 5th and 14th. No articulation of scrutiny level, but did say illegal status precluded treatment as suspect class. However, more than rational basis was used; seems like intermediate scrutiny was used. Opinion emphasized blamelessness of children and made pub policy point about the negative impacts of a permanent uneducated underclass.

Discrimination against non-marital childrenClark v Jeter-

Gets IS-
Laws that deny benefits to NMC and give them to MC are Un-C, laws that benefit some NMC but not all are tried on a case by case basis.

SC struck down a rule that said that NMC's had to establish paternity within the first six years in order to seek support from the father. IS should be used- here law is bad b/c the needs migth not show up until later/ and no opportunity to present claims-

Levy v LA

- Court struck down a ban on NMC suing for wrongful death of a mother. Still a wrong on the dead mom

2. New Jersey Welfare v Cahill

Court struck down a ban on NMC getting public assistance benefits

3. Gomez v Perry-

Court struck down a law requiring men to support their kids from marriage and not NMC
a. Once the state creates a right for kids they can not deny it to NMC

4. Trimble v Gordon-

Court struck down a law that banned inheritance for NMC's when the father dies intestate but allowed when it was the mother
a. Paternity reasoning was not enough

1. Lalli v Lalli

- Ok to require that paternity be established during the father's lifetime in order for NMC to inherit- Concern with fraud made this law acceptable

Labine v Vincent-

Ok to require formal acknowledgment in order to inherit- Same interest as Lalli

3. Matthews v Lucas

Law allowed kids to get survivor benefits if they could prove paternity and dependency-
a. Dependency was presumed for MC's and NMC's who could inherit. Everyone else had to prove dependency
i. OK b/c it does not preclude every kid from receiving benefits and it reduced the admin burdens

4. Jiminez v Weinberger-

NMC's who were not living with the father nor being supported by him could not get inherit disability benefits
a. Court strikes this down-
a. This D'd against any afterborn NMC's when there is just as high of a likelihood of spurious claims

Act requires cable television systems to provide a portion of their channels to the transmission of local broadcast Tv stations. TBS argues that this violates their rights to free speech. Content based speech restrictions must meet strict scrutiny while content neutral regulation need only meet intermediate scrutiny.
a. Test for content neutrality is asking the question whether the gov’t adopted the regulation b/c of agreement or disagreement with the message-

HOw to determine whether a law is content based

Viewpoint neutrality, subject matter neutrality, secondary effects.

1. Viewpoint neutrality

means that government cannot regulate speech based on ideology of message.

Boos v Berry

a. Boos v. Berry (1988): SC declared unconstitutional DC ordinance that prohibited display of signs critical of foreign governments w/in 500 ft of embassy b/c the law drew distinction based on subject matter. COurt distinguishes Renton b/c the state did not point to bad effects of the protest.

2. Subject matter neutrality

government cannot regulate based upon the topic of the speech.

a. Carey v. Brown

SC declared unconstitutional Chicago ordinance that prohibited all residential neighborhood picketing unless it was labor picketing. Regulation of speech in public places must be subject matter neutral.

Renton test

It is ok for the state to regulate speech based on the unwanted secondary effects of the speech and not on the content of the speech

a. Renton v. Playtime Theaters

): SC rejected challenge to zoning ordinance that prohibited adult theaters from locating w/in 1,000 ft of certain zones. Although the ordinance was clearly CB, SC treated as CN b/c the law was motivated by a desire to control the secondary effects of adult theaters (crime) and not to restrict speech. CB/CN Test is based on law’s justification not its terms.
i. Brennan dissent: rule allows an end run around 1st A. in that CB restriction can easily be recast as CN restriction designed to combat secondary effects.
ii. Other criticism: approach confuses CB/CN distinction w/ question of whether law is justified by sufficient purpose

ii. City of Cincinatti v Discovery Network-

- Court strikes down a ban on the use of newsracks on public property for the distribution of commercial handbill
1. City argued secondary effects, Court rejected b/c newsracks with papers were allowed
2. No distinction between commercial paper and newspapers so it must be content based

iii. City of Erie v. PAP’s A.M.

): SC upheld ordinance that prohibited public nudity even though motivated by desire to close down strip club. O’Connor plurality declared that ordinance was proper in that it targeted secondary impacts and not the erotic message of nude dancing.

iv. Hill v. CO

): SC upheld CO law that prohibits approaching w/o consent w/in 8 ft of person w/in 100 ft of healthcare facility for purposes of oral protest, education or counseling.
1. SC claimed that restriction was unrelated to content of demonstrators’ speech—motivation was to stop adverse effects of speech.
2. Stevens says law was CN for three reasons:
a. not speech reg, but reg of where speech may occur,
b. VP neutral b/c CO SC held that statute applies regardless of message of demonstrator and no reference to content in statutory language, and
c. CO interest in citizen privacy and providing police guidelines unrelated to content

Requirements for the Renton test

A law that on its face regulates speech based on its viewpoint or message will be presumed to content based
i. BUT the gov't can refute this by persuading the court that the regulation is justified by a content neutral desire to avoid the undesirable secondary effect of the speech.
ii. Content neutral justification must be truly UNRELATED to the desire to suppress speech AND it must be unique to the speech suppressed as compared to the speech allowed

when govnernment must make CB choices

when government runs a theater or library or subsidizes speech, it will inevitably make CB choices. In such situations, government may make CB decisions so long as they are viewpoint neutral.

1. NEA v. Finley

SC upheld restrictions on artist grants that encouraged decency and cultural respect be taken into account in awarding. There was no viewpoint discrimination in that the government must necessarily make choices among applicants.When the government is giving subsidies, imprecise criteria are permitted, even if they would not be tolerated in a regulatory scheme.
a. No risk that the decision will substantially burden speech

i. Vagueness

Law is unconstitutionally vague if a reasonable person cannot tell what speech is prohibited and what is permitted. Vagueness is a DP problem whether the law implicates speech or not.

2. Coates v City of Cincinnati

- Statute makes it a criminal offense for three people to assemble on any sidewalks in a manner annoying to persons passing by.
a. Court says that this is too vague, b/c it is an unascertainable standard
i. Annoyance is a subjective standard
ii. Men of common intelligence must guess at the standard
b. City can ban all the behavior that the city says that it covers, but it must do so in a way that does not depend on whether someone is annoyed
c. Also violates the right to free assembly-enforcement of this rule would lead to a suspension of the right to assemble

3. Baggett v Bullitt

Court struck down a requirement that a person take an oath that they were not a subversive person. Subversive is too ambiguous of a word-

ii. Overbreadth-

Law is unconstitutionally overbroad if it regulates substantially more speech than the CON allows to be regulated and a person to whom the law constitutionally can be applied can argue that the it would be uncon as applied to others

Two parts of the overbreadth case

Law must be substantially overbroad AND the person to whom the law can be consitutionally applied must argue that it would be UNCON when applied to others

a. Broadrick v Ok

Court said that a ban on political activity by gov't workers was not overbroad b/c it was not substantially overbroad- Court could figure out which things should be allowed later

City Council v Taxpayers for Vincent

Overbreadth means a realistic danger that the statute itself will significantly compromise recognized first amendment protections of parties not before the court-
i.Must show a significant number of situations where the law could be applied to permitted speech. Here the law was ok b.c it banned signs on public property b/c it was not substantially overbroad

c. Houston v Hill

Law banning interrupting a cop. Court held that the statute was violated scores of times daily, yet only a few people were ever arrested for the violation

d. NY v Ferber

- law banning kiddie porn was ok b/c in the few cases where there is a legitimate reason for the material the court can figure that out

e. City Council v. Taxpayers for Vincent

Sc upheld ordinance prohibiting sign posting on public property. Ct declared: “a statute may be invalidated on its face …only if the overbreadth is substantial.” To be substantially overbroad, it is not enough that Π be able to conceive of some impermissible applications of the statute. “There must be a realistic danger that the statute will significantly compromise recognized 1st Amendment protections of parties not before the court.”

a. Sec of State v JH Munson-

court allowed a professional fundraiser to challenge a statute requiring that 75% of the proceeds of a charity go to the organization

b. Schad v Mount Ephraim-

P's had a nude dancing booth. City council passed a law banning all live entertainment-
i. P's argue that the law includes a lot of stuff that is protected by the 1st amendment as well as nude dancing-
ii. B/c the claims are based on the first amendment the P's can claim a damage to other people affected by the statute-People clearly have standing to argue this case

OB and SC

Court will use the OB doctrine to allow for a narrow statutory construction

a. Osborne v Ohio

-Kiddie porn law outlawed the possession of nude photos of children. Court allowed a narrowing interpretation that only banned prurient pictures of naked kids

b. Gooding v Wilson-

Court struck down a Ga ban on fighting words laws, b/c the State courts had not given it a narrowing construction

d. Prior restraints

an administrative system or ct order that prevents speech from occurring. E.g.: licensing or a government seizure of every copy of a particular newspaper

ii. Collateral bar rule-

- Person violating an Uncon law may not be punished but a person violating an Uncon prior restraint generally can-1. Court orders must be obeyed until they are set aside- Can't defend a contempt charge by alleging that the order was uncon-

a. Walker v City of Birmingham

-Court upheld MLK conviction based on a court order banning any protests. Court does not want to sanction the violation of the law-
i. CBR bans all challenges unless the order is transparently invalid

CBR and procedure

Only applies to proedurally correct rules

a. Caroll v President of Princess Anne

- court refused to apply the CBR when there was not notice procedure in the court order-

Adequate safeguards and the CBR-

If the law has adequate procedural safeguards it can not be violated and then challenged. a. Poulos v NH- Court applied the CBR to a licensing scheme- Reverend went forward w/o a license to preach instead of challenging his denial of a license-Can't say that the state's requirement that the person follow process violates due process-
b. Shuttlesworth v City of Birmingham- Court addressed the uncon of a city statute that gave the city officials unfettered discretion to not allow a demonstration.
i. Difference between Poulos and this case is that the former involved a law that was valid on its face b/c it contained adequate safeguards

1. Near v State of Minnesota Ex rel Olson-

Minnesota had a statute which provided for the abatement of any malicious scandalous and defamatory newspaper, magazine or other periodical
a. SC declared injunction unconstitutional. Sc emphasized that appropriate way of dealing w/ such speech is after the fact punishment. Injunctions are only allowed in exceptional cases, such as obstruction of military recruiting or publication of sailing dates or troop positions, obscene publications, incitements to violence or overthrow of the government

NArrow tailoring and PR's by court orders

injunction must be “couched in the narrowest terms that will accomplish the pin-pointed objective permitted by constitutional mandate and the essential needs of the public order.”

NY times v US

Per curiam opinion on request for an injunction based on the publication of the pentagon papers.
a. Black/Douglas concurrence: seemed to take an absolute position against prior restraints to protect national security.
b. Brennan concurrence: argued for strict scrutiny for national security prior restraints. The nation must at least be at war to justify restraint; US fell far short of satisfying burden.
c. White/Marshall concurrence: emphasized absence of statutory authority for cts impose injunction. Congress must approve such an injunction. Why congressional approval would have made any difference in analysis is not explained.
d. Stewart concurrence: president had the power to seek injunction for national security but had failed to justify need for prior restraint. Disclosure of info will not result in immediate, direct, and irreparable damage to Nation or its people, so no need for injunction.
e. Burger/Harlan dissent: the decision was being made to hastily; more time should be spent reviewing the documents to ensure that there was no national security risk.
f. Blackmun dissent: wrote strongest dissent to rapid pace in handling; laid any damage at door of papers

Unconstitutional conditions

Government can not condition the receipt of a benefit on the requirement that a person forego a C right. Here a right to free speech

ii. Speiser v Randall-

1. Cal required that a vet who was getting a property tax exemption to sign an oath that they did not advocate the overthrow of the gov't. P's refused and their exemption was denied
2. Court says this is bad b/c the requirement will result in the chilling of this kind of speech-

iii. FCC v League of Women Voters-

1. Federal statute required that a person who gets a federal grant to run a tv station can't editorialize,. Court strikes if down. Distinguished from Regan b/c the station was not allowed to get any money if they did any editorializing even if they used other money

iv. Regan v Taxation with Rep of wash

Court upheld a ban on tax exempt status for organizations that engage in lobbying-
1. Court ignored the UNCON conditions argument by saying that Congress is merely not funding something and that failure to fund a fundamental right does not equal a ba

1. Rust v Sullivan

Challenge to title X of the HHS code which gave money to family planning orgs, but not ones that advocate abortion as a procedure.
a. Court says that this is ok, b/c the gov’t is just defining the contours of the program and not impinging the rights of free speech.
i. Viewpoint based funding decision can be sustained in instances in which the government is the speaker-
b. Brennan dissent-this conditions the receipt of public money on the viewpoint of the person. THIS IS NOT ALLOWABLE. These are both viewpoint and content based restrictions ( must encourage services to avoid an abortion but can’t talk about abortion as an option).

2. Legal Services Corp v Velazquez-

LSCA set up boards that provide non-criminal legal services to some people-Law bans the representation of people if it is in order to challenge otherwise existing welfare law. By its terms the statute does not allow lawyers to say that a state statute is in conflict with a federal statute or that it violates the US CON-
a. Gov’t is not the speaker here so they can not limit this program in this way
b. By seeking to prohibit the analysis of legal issues and to truncate presentation to the courts, the law prohibits speech and expression upon which courts must depend for the proper exercise of the judicial power and Congress can not do this-
i. Court must be vigilant when Congress imposes rules and conditions which in effect insulates its own laws from legitimate judicial challenge-
c. Scalia dissent- This is no different than Rust- Gov’t is just delineating the contours of the program-

D printed and circulated a pamphlet that said that the draft violated the 13th amendment and stated that people should resist the draft. It cited only peaceful methods like repealing the act. Also printed a pamphlet urging people to assert their rights under the con and not go to war. Court says-
a. Document was meant to have an effect-
b. In other situations the D might be protected but we have to look to the circumstances-
c. Are they uttered in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent.
i. Tis is different when the country is at war than when they are at peace-

6. Transition to Brandenburg cases=

a. Bond v Floyd- Ga legislature could not refuse to seat someone for speaking out against the war
b. Watts v US- Man could not be convicted for saying that he would take aim at LBJ if drafted b/c it was merely political hyperbole

THe Brandenburg test

Most protective of speech of all tests. Conviction for incitement is constitutional only if there is: (1) imminent harm, (2) a likelihood of producing illegal action and (3) an intent to cause imminent illegality.

Brandenburg v Ohio

Reporter goes to a Klan rally and films the klan members acting funny. Included burning a cross and making derogatory comments. Speaker did not carry a weapon but some of the people in the video did0
a. Criminal syndicalism act-Act punishes speech that advocates the use of force as a means of accomplishing industrial or political reform
b. This bars mere advocacy of violence and not words that are directed at inciting or producing imminent lawless action and which is likely to produce such action-
c. Mere abstract teaching is different from actual preparation
i. This statute punishes mere advocacy and forbids assembly to advocate certain things, this is no good

a. Hess v Indiana

-"We'll take the street later" is not enough b.c there was no evidence that the words were intended to produce and likely to produce imminent disorder

b. Naacp v Claiborne Hardware-

- Ok to say that they would break anyones neck if they went into a racist store. This was mere advocacy of force and therefore still protected by the 1st amendment.

iii. Threatening Speech:

SC has held no constitutional protection for a “true threat.” Split in circuits: perspective of reasonable speaker v. reasonable listener. Related to Brandenburg in that it involves speech that threatens violence but distinct in that focus is not on consequences but on the need to protect listener from feeling threatened

e. Fighting words-

i. Speech is fighting words when:
1. it is likely to cause a violent response against the speaker.
2. it is an insult likely to inflict emotional harm.

Chaplinsky v. NH

SC expressly held that fighting words are unprotected. Jehovah’s Witness ∆ was distributing religious literature and gave speech denouncing other religions. At some point he called a listener a “Fascist” and “racketeer.” SC said that fighting words are “not an essential part of any exposition of ideas and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality.”

Limitations on fighting words doctrine

Must be directed at another person and likely to produce a lawless reposnse, vague/Ob, impermissible content based disstinction

i. Street v NY-

- Court reversed a conviction burning a flag by saying that there are small class of words that are likely to provoke the average person to retaliation and cause a breach of the peace

ii. Cohen v Ca-

Unprotected fighting words occur only when they are directed at another person-Fuck the draft on the back of a jacket is not enough to get to fighting words-

iii. Tx v Johnson-

Fighting words statutes often suffer from this problem

c. Impermissible content based distinction

- Gov’t can not make content based distinctions within the subgroup of unprotected speech.

RAV v City of St paul

P burned a small cross in the front yard of his black neighbors. St Paul had a law against putting a symbol (such as a swastika or burning cross) on public or private property that one knows or has reason to know would arouse anger, alarm, or resentment in others on the basis of race, color creed or gender. This is a bad law b/c even within the subset of unprotected speech the gov't can not make content based distinctions

i. Group Libel

earlier case suggested this may be workable legal theory, but more recent cases suggest otherwise as hate speech is protected and government may not outlaw symbols of hate or speech b/c the way that an audience may react.

1. Beauharnais v. IL

SC upheld conviction of ∆ who violated IL law prohibiting any publication that defamed any class of citizens. Just as a ct may punish defamation against a person, it could punish group defamation, and since libel is not protected, the clear and present danger test need not be met.
a. NB: not overruled but probably not good law as NY Times v. Sullivan (1964) said that defamation liability is limited by 1st A. RAV indicates that expression of hate is protected by 1st A., and such a statute would likely be invalidated as V/O.

): SC overturned ∆ conviction of VA law outlawing cross burning w/ intent to intimidate. SC held that governments may prohibit cross burning done w/ intent to intimidate, but intent must be proven in particular case. Holding has 3 parts:
1. Government may not prohibit all cross burning. Government may not ban symbols simply b/c they are powerful and offensive.
a. Thomas dissent emphasized that burning is conduct not speech and is inherently intimidating.
2. Cross burning done w/ intent to threaten—that constitutes “true threat”—is unprotected. Must communicate serious intent to commit violent act to particular individual or group. Speaker need not actually intend to carry out threat.
3. Must be proof in each case that speech was “true threat.” VA law unconstitutional in that act was prima facie evidence of intent.

Roth definition of obscenity

Material having a tendency to incite lustful thoughts- and dealing with sex in a manner appealing to the prurient interest

Paris Adult Theatre v Slaton

- State busts two porno theatres in Ga. Obscenity is outside of the protection of the first amendment, and it does not change the analysis if the obscenity is only shown to consenting adults.
a. Roth is reaffirmed but modified. The target in this case is the material and not the thoughts that it provokes.
b. State interests in preventing obscenity-
i. Quality of life and the total community environment
ii. Tone of commerce in great city centers
iii. Public safety- There is at least an arguable connection between obscenity and crime
c. Brennan Dissent- Roth's theory that there is a definable class of material that falls outside the protection of the 1st amendment should be abandoned b/c obscenity can not be defined with enough specificity to provide notice
d. Douglas dissent- Matters of taste, like belief fall on the idiosyncracies of the individuals. First amendment presupposes that freedom and liberty are in a frame of reference that makes the individual and not the government the keeper of his tastes, beliefs and ideas

Miller test

i. Would the average person applying the contemporary community standards find that the work appeals to the prurient interest
ii. Does the work depict or describe in a patently offensive way sexual conduct specifically defined by the applicable state law
iii. Does the work lack serious literary, artistic, political or scientific value

i. Ward v Illinois-

- Court said that the law did not need to have an exhaustive list of sexual conduct that would be patently offensive, using the examples from Miller would be enough. Depictions of ultimate sexual acts, mastrbation, excretory functions, lewd exhibtion of genitals

ii. Jenkins v Ga-

- Court ruled that a movie called Carnal Knowledge could not be deemed to be obscene B/C there was no exhibition of the actors genitals, lewd or otherwise. Occasional scenes of nudity can not be enough to make material legally obscene under the Miller standards.

i. Pope v Illinois-

- Social value is to be determined by a national standard and not community standard. Value does not vary, and would a reasonable person find such value in the material

NY v Ferber

1. NY v. Ferber (1982): SC upheld conviction of ∆ selling vids of boys masturbating in violation of NY law that prohibited sale, promotion or distribution of child porno. SC held that government may prohibit exhibition, sale or distribution of child porno even if it does not meet the test for obscenity. Protecting wellbeing of minor is a compelling interest; porno is definitely exploitative and harmful (SC likens to child abuse).

Ashcroft v. Free Speech Coalition

): SC declared unconstitutional Child Porno Prevention Act of 1996, which prohibits child porno whether based on actual child pics, pics of adults who are child-like in appearance or computer generated images. The government’s interest in banning child porno is in safeguarding children from being used in making the material not a condemnation of the material itself.
a. O’Connor Concurrence- Ban on virtual child porno should be upheld. Meets the SS test

Technique breakdown on controlling obcenity

Gov't can prohibit the sale, distribution and exhibition of obscene materials even to willing recipients
1. BUT they can not prohibit or punish the private possession of obscene materials,
2. Although it may outlaw the private possession of CP

a. Us V Reidel-

Court refused to extend Stanley to the receipt of obscene materials. Feds can regulate the mails. P here was trying to use the federal mails to get obscene materials and the state can do this

a. Stanley v Ga

P was being searched on a warrant for bookmaking materials. They found some porno movies on 8 mm. He was later convicted of knowingly possessing obscene material in violation of the law-
i. People have the right to be free from unwanted gov't intrusions into their home .If the 1st amendment means anything it means that a person is free in their own home to read or watch what they want. State's argument that this may lead to deviant sexual behavior is not empirically based

a. Osborne v Ohio-

Court refuses to extend Stanley to the CP. Stanley is narrow and Ferber has been decided since then.
i. State is not, as in Stanley, regulating the mind of the D, in fact they are trying to protect children and hoping to destroy the market for this material
ii. Will also decrease demand
iii. Since Ferber much of the production has been driven underground and it is hard to punish distribution, so it is necessary to go after the possessor

i. Cohen v. Ca

Fuck the Draft on the back of the jacket- This is ok-
1. IN order for the gov't to justify stopping offensive language in public they must show that substantial privacy interests are being invaded in an essentially intolerable manner-
2. Free discourse is out there to protect society-
a. One of the side effects of this may be that at times we are bombarded with bad stuff, but that shows the strength of the system and not a weakness
3. Dissent- This is either conduct or fighting words

FCC v Pacifica Foundation-

- Does the FCC have any power to regulate a radio broadcast that is indecent but not obscene? Radio station broadcast Carlin's dirty words monologue. Guy complains to the FCC. Found them in violation but did not sanction them.
1. Broadcasting receives the least amount of protection b/c it is a uniquely pervasive presence in America-
a. Also uniquely accessible to children

Definition of commercial speech

expression related solely to the economic interests of the speaker and its audiences.”

Central Hudson Test-

1. Does the speech concern an illegal activity?
2. Is it false, deceptive or misleading
3. Is the gov'ts interest substantial
4. Is the law more restrictive than necessary to serve the gov't interest?

iii. Central Hudson Gas and Electric v PSC-

- Ban on advertising by all utilites-
1. Court strikes down the ban by applying the four part test-
a. Not illegal, substantial interest in decreasing demand for energy, directly advances the interest BUT bans substantially more speech than is necessary b/c it is not tailored to ads that would increase consumption

1. Rubin v Coors Brewing-

Court struck down a ban on printing the alcohol content on the label
a. There was a significant interest ( Stopping a war over alcohol content)
b. Not narrowly tailored-
i. Could limit the amount of alcohol, prohibit marketing emphasizing alcohol strength, or limit the ban to malt liquors

2. 44 Liquor Mart V RI

SC invalidated RI law prohibiting price advertising. State failed to show that advertising ban will significantly advance state objective of encouraging temperance. SC listed many alternatives that would better encourage temperance such as taxing sales.
a. Thomas concurrence- CH should not be applied when the asserted interest is keeping people ignorant
b. O’Connor Concurrence- Law is not narrowly tailored

Lorillard Tobacco v. Reilly (

SC considered constitutionality of MA law that prevented tobacco advertising w/in 1,000 ft of school and required ads to be at least 5 ft off ground. Cigarette regs were preempted by fed law, but ct considered 1st A. implications of regs as related to cigars and smokeless tobacco. Central Hudson applied; SC determined that there was substantial interest in preventing minor tobacco use. The 1,000 ft rule failed to be narrowly tailored b/c in some metro areas, it would nearly preclude advertisement altogether—the AG did not carefully calculate the speech impact of reg. The 5ft rule failed to be substantially related to the interest b/c children could look up and see other ads.
1. Thomas Concurrence- SS should be applied- Fact that it has a huge impact does not justify breaking from 1st amendment analysis
2. Stevens concurrence- Have to look to see whether the ban leaves open alternative avenues of communications

What is conduct that communicates

a. Stromberg v California- Court struck down a rule banning red flags
b. West Va State BOE v Barnette- Court struck down a rule requiring that students salute the flag. Not saluting was considered to be speech

Two part test for conduct that communicates

(1) Intent to covey a particularized message present.
(2) in surrounding circumstances likelihood is great that message will be understood by those who view it.

Government may regulate communicative conduct if
(1)it has an important interest unrelated to suppression of message, and
(2) incidental speech impact is no more than is needed to achieve the government’s purpose.

US v Obrien

∆ burned draft cards to protest Vietnam in violation of fed law that made crime to “knowingly” destroy draft cards. Government may regulate communicative conduct if it has an important interest unrelated to suppression of message, and incidental speech impact is no more than is needed to achieve the government’s purpose. SC determined that draft cards were needed to facilitate rapid mobilization, aid’s communication w/ draft board, and reminds persons to notify of changes

Street v. NY

SC overturned conviction of ∆ who burned flag and “spoke contemptuously” to protest Meredith shooting. Law was unconstitutional b/c it allowed ∆ to be punished for speaking poorly of the flag.

Smith v. Goguen

∆ sewed small flag to pants’ seat and convicted under law that forbade “publicly mutilate[ing], trampl[ing] upon, defac[ing] or treat[ing] contemptuously” a US flag. SC found law vague in that “contemptuous” is inherently vague.

TX v. Johnson (

SC declared unconstitutional TX statute that prohibited any person to “deface, damage, or otherwise physically mistreat” a flag in a way that the actor knows will seriously offend onlookers.
(a) Brennan majority: emphasized difference from O’Brien in that here the government’s interest was not unrelated to suppression of the message; the purpose was to keep the flag from being used to convey protest. This was clear b/c TX did not prohibit all flag burning, but only burning that would offend others.
(b) Rehnquist dissent: flag is important national symbol and dissent can be conveyed in other ways. ∆ had no real message; ∆ only wanted to inflame onlookers.

US v. Eichman

federal flag burning law that left out offending other language declared unconstitutional for same reasons as Johnson

MOney as speech

THe gov't can regulate the amount that people donate, keep tabs on the amount spent, and put exepnditure limits when they provide money, but the can't regulate how much is spent

Buckley-Spending Money as Speech

clearly a form of political speech. “A restriction on the amount of money a person or group can spend on political communication during a campaign necessarily reduces the quantity of expression…b/c virtually every means of communicating ideas in today’s mass society requires the expenditure of money.”

Buckley- Contribution v. Expenditure Limits: contribution

: contribution limits were upheld while expenditure limits were invalidated b/c expenditure limits would limit the nature and quantity of speech while contribution limits would do little direct harm to speech as contributors are not hindered in discussing issues and may make symbolic contributions showing who they support. Also, the state interest in contributions is more compelling in that limits reduce the appearance of corruption.

Buckley- Candidate Expenditure Ceilings:

reducing costs of campaigns does justify the restrictions. but 1st A. denies government the power to determine whether spending to promote one’s political views is unwise.

Buckley-Disclosure Requirements:

upheld b/c they provide important info to the public about candidates and deter actual corruption. SC said that there might be instances involving minor or dissident parties who are threatened to the extent that they might not use 1st A. rights that disclosure might not be substantial enough to overcome.

Public Financing:

does not restrict speech but increases it by enlarging public discussion and participation. Conditioning funds on expenditure limits is permissible b/c limits are voluntary.

CA Medical Assoc. v. FEC

SC upheld FEC provision limiting the amount that could be contributed to a PAC. Restricting the amount of contributions does not significantly limit speech. Contributions to PACs are even less important b/c the money s only expression only when spent by PAC.

MO law that set contribution limits for state campaigns upheld. Buckley was reaffirmed; SC neglected to adjust limits for inflation.

McConnell v. FEC

SC upheld most key provisions of Bipartisan Campaign Finance Reform Act of 2002. Restrictions on soft money, which SC considered like a contribution that circumvents contribution limits, serve important interest in preventing corruption. SC also upheld regulation of electioneering communications—certain issue advocacy ads paid for by corporations must use hard money and be disclosed. SC invalidated provisions that prohibit person under 17 from making contributions to prevent parents from funneling money through kids b/c it was overinclusive—Congress showed no evidence that abuse was occurring and minors enjoy 1st A. protections. SC upheld provision requiring broadcasters to keep public record of political broadcasting b/c fed government has authority to regulate broadcasting and no unreasonable burden on broadcasters.

Schneider v NJ

Court states that cities must allow speech on public property even if it costs money

Perry Educ. Assoc. v. Perry Local Educator’s Assoc.

Court holds that allowing the union to use the SD's mail system did not make it a public forum. since it was not a public forum the school could keep people out

Public forums

government-owned properties that the government is constitutionally obligated to make available for speech (e.g., sidewalks and parks).

Factors to decide

Tradition of Availability of Place for Speech: Sidewalks have long been open for speech. However, recent cases have demanded very particular inquiry making finding public forum more difficult. E.g., in Kokinda, PO sidewalks specifically are considered and not just sidewalks generally.
b. Extent to which Speech is Incompatible w/ Place’s Usual Function: greater incompatibility, more likely SC is to find non-public forum. E.g., in Adderley, security concerns designated prison non-public forum. But, SC requires little proof that speech will interfere.
c. Whether Place’s Primary Purpose is for Speech: E.g., Lee concluded that airports were no primarily for speech. Inquiry is tough, however, as even sidewalks were not primarily constructed as a forum for expression.

SC invalidated IL statute that prohibited picketing or demonstrations around a person’s residence unless place of business or place of employment involved in labor dispute. Mosley applied to indicate subject matter discrimination.

Frisby v. Schultz

): SC upheld ordinance that prohibited picketing “before or about” any residence. Although law was adopted in response to targeted picketing of abortion doctor’s home, SC held that law was CN b/c narrowly tailored to protect tranquility and repose in person’s home. 1st A. “permits the government to prohibit offensive speech when the ‘captive’ argument cannot avoid the objectionable speech.”

refers to ability of government to regulate speech in public forum in a manner that minimizes disruption of public place while still protecting freedom of speech.

Heffron v. International Society for Krishna Consciousness

SC upheld regulation of speech at MN State Fair that prohibited distribution of literature except at booths, which were available on first come, first serve basis. Reasonable TPM restrictions were approved “provided that they are justified w/o reference to the content of the regulated speech, that they serve a significant governmental interest, and that in doing so they leave open ample alternative channels for communication of the information.” Crowd control was sufficient interest and Π could reach crowd off fairgrounds.Reasonable TPM restrictions were approved “provided that they are justified w/o reference to the content of the regulated speech, that they serve a significant governmental interest, and that in doing so they leave open ample alternative channels for communication of the information.”

Kovacs v. Cooper

SC upheld restriction on use of sound amplification devices on trucks. SC held that law did prohibit all devices, but was reasonable TPM restriction.

Grayned v. Rockford

SC upheld ordinance prohibiting noises that disturbs or to disturb in buildings adjacent to schools where class is in session. “Crucial question is whether the manner of expression is basically compatible w/ the normal activity of a particular place at a particular time.” State has sufficient interest in ensuring order sufficient for schooling.

Clark v. Community for Creative Non-Violence

SC approved fed regulation preventing group from protesting by sleeping in park. Park Serv. Allowed protestors to erect tent city, but refused to let them sleep in park. SC upheld as reasonable TPM restriction b/c CN, preserving park beauty was important interest, and there were alternative means of expressing speech, e.g., protestors could “feign” sleep in tents but could not actually sleep.

government can require license for public forum speech only if there is an important reason, there are clear criteria leaving almost no discretion to licensing authority, and there are procedural safeguards such as requirement for prompt determinations of licensing requests and judicial review of denials.

(a) Cox v. NH

SC upheld ordinance requiring parade or demonstration permit and allowed denial only when area in use by another group. State had important interest in making sure that there was only one demonstration at one time, emphasizing that board did not have arbitrary discretion.

(b) Lovell v. City of Griffin

SC invalidated ordinance prohibiting distribution of leaflets &c w/o written permission of city manager. This was an impermissible prior restraint.

(d) Kunz v. NY (

SC invalidated ordinance prohibiting holding of religious meeting on public street w/o permit. Government “cannot vest restraining control over the right to speak…in an admin official where there are no appropriate standards to guide his actions.”

(e) Forsyth County, GA v. Nationalist Movement

): SC invalidated ordinance requiring demonstration permit and allowed government officials to set fee b/c administrator not required to rely on objective factors in setting fee, and he need not explain decision, which is unreviewable. Official could encourage or discourage expression of some views w/ fee setting.

Ward v. Rock Against Racism

SC upheld NYC requirement Central Park concert had to use city engineer and city sound equipment. In response to Π argument that decibel level requirement would be less restrictive, SC held that TPM restriction is legitimate “so long as the means chosen are not substantially broader than necessary to achieve the government’s interest, however, the regulation will not be invalid simply b/c a ct concludes that the government’s interest could be adequately served by some less-speech-restrictive- alternative.”

Designated Public Forums

a place that government could close to speech but has voluntarily, affirmatively opened to speech. So long as the place is open to speech, the rules for public forums apply. See religion and speech cases

Lehman v. City of Shaker HTS

): city sold advertising space on buses but refused to accept advertising on behalf of political candidate. SC upheld limit as constitutional as there was no public forum—city was engaged in commercial venture and could deny space just as a private advertiser could. And, city was justified in denying space to avoid concerns of favoritism.

Non-Public Forums

Govt can close to all speech but it must be reasonable And viewpoint neutral-

Adderley v. FL

Civil rights protestors held protest outside of jail when colleagues arrested; SC upheld convictions of ∆ arrested when did not disperse at sheriff’s command. SC held that government may prohibit speech in area outside jail b/c Constitution does not prohibit state from controlling use of property for lawful nondiscriminatory purposes. Constitution does not permit protestors to propagandize views whenever, however, and wherever they like.

Greer v. Spock (

SC held that military bases, even parts usually open to public, are not public forum. Business of military installation is to train soldiers not to provide public forum. Government may exclude speech at base to insulate military from political activities.

US v Kokinda

SC upheld restriction on post office solicitation; sidewalks on post office property are non-public forums. Although these sidewalks have features of public ones, postal sidewalks were designed solely to provide passage for those engaged in postal business. That others had used postal sidewalks for speech activities was not enough to transform them into a public forum.

International Society for Krishna Consciousness v. Lee

Airports are a nonpublic forum. Since airports are fairly recent, they do not qualify as place that have been traditionally held in the public trust for expressive activity. Prohibition against solicitation of funds was reasonable b/c government has important interest in preventing fraud, but prohibition of distribution of literature unconstitutional b/c it was unreasonable even though airport not a public forum.

Freedom of association and discrimination

Although not listed in 1st A., SC has declared that association is fundamental right—“freedom to engage in association for the advancement of beliefs and ideas is an inseparable aspect of the liberty assured by the DP Clause of the 14th A., which embraces freedom of speech.” NAACP v. AL ex rel. Patterson (1957). However, SC has held that compelling interest of stopping discrimination justifies interference with associational freedoms. Discrimination is allowed in intimate groups or if forcing association would undermine core message of group.

1. Roberts v. US Jaycees

leading case. Jaycees, national org for young men, challenged MN Human Rights Act, which prohibited private discrimination based on race or sex. SC reaffirmed association as fundamental right, but said that infringements are justified if they serve a compelling state interest, unrelated to suppression of ideas that cannot be achieved through significantly less restrictive means. Prohibiting discrimination is compelling interest, and SC found no evidence that including women would undermine Jaycees’ expressive activities and Jaycees was too large to be considered “intimate association.”

2. Board of Directors of Rotary International v. Rotary Club of Duarte (

SC held that it did not violate 1st A. rights of Rotary Club to force them to admit women in compliance w/ CA law that prohibited private businesses from discriminating based on gender.

3. NY State Club Assoc. v. NYC

SC upheld ordinance prohibiting discrimination by clubs that have more than 400 members and provide regular meal service. Private clubs are places where business is done and contacts are made; if women and minorities are excluded, their careers will suffer.

Veterans’ Council who runs annual St. Pat. Parade refused to allow gay group to participate in its parade. SC held that parade is inherently expressive activity and that it violated 1st A. to force organizers to include messages that they find inimical, speakers have the right to choose content of their own message. NB: Gays were not prohibited from marching—only the gay group was prohibited from marching as a group.

5. Boy Scouts v. Dale

): Π was Eagle Scout who was booted from org b/c of gay rights activism. Π sued under NJ law that prohibits discrimination in places of public accommodation. Boy Scouts obviously not intimate group, so ∆ had to argue that forced inclusion of gays would undermine expressive content of Boy Scout message.
a. Rehnquist majority: although sexual orientation is not mentioned in the Boy Scout oath or law, the Boy Scout interpretation of “clean” and “morally straight” as including such a goal should be respected. The forced inclusion of unwanted person infringes group freed of expression if presence significantly affects group ability to advocate public or private VP. Π inclusion would send message to world that Boy Scouts accepts homosexuality as legitimate.
b. Stevens dissent: nothing in Boy Scout manual or mission statement indicates antigay agenda. In fact, org instructs scout leaders to refrain from discussing sexuality.

Definition of religion

Includes non-theistic views where given belief is “sincere and meaningful occupies a place in the life of its possessor parallel to that filled by the orthodox belief in God of one who clearly qualifies for the exemption

US v. Seeger (1965):

SC construed provision of Universal Military Training and Selective Serv. Act exempting from training and combat individuals conscientious objectors. In Act, ‘religious training and belief’ defined as “individual’s belief in relation to a Supreme Being involving duties superior to those arising from any human relation” excluding purely philosophical or moral beliefs. SC defined ‘religion’ to include nontheistic views where given belief is “sincere and meaningful occupies a place in the life of its possessor parallel to that filled by the orthodox belief in God of one who clearly qualifies for the exemption.” No criteria articulated for assessing particular views under definition.

Welsh v. US

): Same statute, but challenger actually crossed out words “religious training” on form. SC held that this was indistinguishable from Seeger and reaffirmed that test was whether belief is religious is whether beliefs pay role of religion in registrant’s life.

2. Requirement for Sincerely Held Belief:

: truth or falsity of beliefs irrelevant in inquiry; must only determine that beliefs are sincerely held.

US v. Ballard (1944):

∆ leaders of “I Am” religion indicted for mail fraud b/c they solicited donations in exchange for disease cure.
a. Douglas majority: jury could only be asked to decide if ∆s sincerely held beliefs, not whether ∆s possessed curative powers. SC reasoned that if adherents of religion could be sent to jail b/c they could not prove truth of beliefs, little would be left of 1st A. protection.
b. Jackson dissent: Impossible to separate truth inquiry from sincerity inquiry. B/c there is no way to test sincerity, jurors will be likely to weigh truth of belief and if they conclude that beliefs are too fantastic and outside of main stream, they will be very likely to conclude that beliefs are insincere.

Relevance of Dogma and Shared Beliefs

one way to assess sincerity would be to reference prevailing doctrines, but since religion is inherently personal, individual might hold sincere belief that departs from dogma. SC has said that dominant views in faith are not determinative in assessing whether a particular belief is religious.

Thomas v. Review Board of IN Emp. Security Div.

Π member of Jehovah’s Witness quit job rather than be transferred to dept producing tank turrets claiming armaments contra religious beliefs. State argued that Π could be denied emp benefits b/c other members worked in armaments as belief not based in scripture. SC declared that this was irrelevant: “guarantee of free exercise is not limited to beliefs which are shared by all members of a religious sect…Courts are not arbiters of scriptural interpretation.” Individual may claim religious belief even though it is inconsistent w/ religious doctrine.

Frazee v. IL Emp. Security Dept

SC allowed individual to claim religious basis for refusing Sunday work even though others in religion did not have proscription. “We reject the notion that to claim the protections of the Free Exercise Clause, one must be responding to the commands of a particular religious organization.”

Reynolds v US

): federal law prohibiting polygamy in territories upheld in face of Mormon assertion that religion required multiple wives. Constitution cannot provide religious exemption for otherwise valid criminal law. “To permit this would be to make the professed doctrines of religious belief superior to the law of the land, and in effect to permit every citizen to become a law unto himself.” Distinction between belief and action drawn.

Cantwell v. CT

Overturned Jehovah’s Witness ∆ convictions for soliciting money w/o license. Licensing system for religious solicitation violates both FEC and freedom of expression. FEC applied to states through DPC of 14th A.

Sherbert v. Verner

Π denied state unemployment benefits after she refused to accept work b/c it violated 7th Day Adventist religious tenet prohibiting Saturday work. SC determined that denial imposed substantial burden on religion in that Π had to choose between income and faith. Strict scrutiny expressly articulated as test.

Area where the court upheld FE challenges to laws

Benefits cases and amish compulsory education cases

Hobbie v. Unemployment Appeals Comm. of FL

FL must provide unemployment benefits to Π who was fired for refusal to work on Saturday Sabbath

WI v. Yoder

SC held that FE required that Amish parents be granted an exemption from compulsory school law. Amish religion believed that values learned in education beyond 8th grade conflicted w/ religion. The law as applied to Amish also violated fundamental right of parents to control child upbringing. No compelling state interest b/c two more yrs of mandatory education in no way harmed children or impaired citizenship ability.

Braunfeld v. Braun

Orthodox Jew Πs challenge Sunday closing laws as applied to them—requiring them to close on Sundays makes it difficult to follow religion since they are also required to close on Saturdays. SC accepted state argument that important government interest of uniform day of rest was served. “To strike down legislation which imposes only an indirect burden on the exercise of religion would radically restrict the operating latitude of the legislature.”

US v. Lee

: SC rejected claim by Amish Π that paying SS violated FE in that Amish believed it a sin not to care for their own elderly and national system would be a sin. Ct found that mandatory participation was indispensable to system and that government interest overrode possible FE concerns.

Jimmy Swaggart Ministries v. Board of Equalization of CA

SC rejected FE challenge to payment of sales and use tax for sale of religious literature and goods. Different from other cases in that they involved 1st A. activity soliciting; FE does not create a basis for exemption from general tax law.

Bob Jones University v. US

SC held that denial of tax exempt status to private schools that racially discriminate on religious grounds does not violate FE. Ct found that eliminating racial discrimination was a compelling interest that could be accomplished by no less restrictive means.

Bowen v. Roy

SC rejected claim for religious exemption to requirement that individuals provide SSN to receive welfare. “FEC affords an individual protection from certain forms of governmental compulsion; it does not afford an individual a right to dictate the conduct of the Government’s internal procedures.”

Gillette v. US

SC held that FEC did not require that individuals who objected to a particular war on religious grounds be given exemption from draft. The draft laws are not directed against any religion; the laws that do not allow such exemption are justified by a “substantial” government interest.

Goldman v. Weinberger

SC rejected FE challenge to military who forbade Orthodox Jewish Π from wearing yarmulke while practicing medicine. SC said that deference to military regulation must be greater than to other regulation. “First Amendment does not require the military to accommodate such practices in the view that they would detract from the uniformity sought by the dress regulations.”

Lyng v. NW Indian Cemetery Protective Assoc.

SC rejected FEC challenge to fed government building road allowing timber harvesting in national forest that contained sacred Indian burial grounds. SC acknowledged that this would destroy ability to practice religion, but FEC “simply cannot be understood to require the government to conduct its own internal affairs in ways that comport with the religious beliefs of particular citizens.”

Current state test for FE

FEC not violated by a neutral law of general applicability unless it fails rational basis, but a law that is not neutral or of general applicability would be invalid unless it met strict scrutiny.

Employment Division v. Smith (

Native American Π challenge OR determination that religious use of peyote was misconduct that disqualified them from receipt of unemployment benefits. SC rejected claim that FE required exemption from otherwise valid law declaring that “the right of free exercise does no relieve an individual of the obligation to comply with a ‘valid and neutral law of general applicability on the ground that the law proscribes (or prescribes) conduct that a religion prescribes (or proscribes).’” Distinguished all of above FE challenges where strict scrutiny as “hybrid” situations where some other fundamental right was also implicated or that involved unemployment benefits. SC explicitly rejected use of strict scrutiny to neutral laws of general applicability that burden religion. In a diverse society, anarchy would ensue if everyone could claim an exemption from law based on religion; those seeking religious exemptions should look to the ballot box for protection, not the courts.

Church of the Lukumi Babalu Aye v. Hialeah

): Santeria Π challenge ordinance prohibiting ritual sacrifice of animals. Ordinance passed after plans announced to open Santeria cultural center and there were exceptions that essentially made law applicable only to Π. SC declared that law that is not neutral and generally applicable must meet strict scrutiny. Ordinance not neutral as it was clearly enacted to prohibit religious practice b/c it had exceptions for kosher slaughtering and other animal killings. In applying strict scrutiny, SC determined law not narrowly tailored as government could achieve stated goal of sanitary disposal of animal remains by other means.

Locke v. Davey

SC held that state government can restrict college scholarships to prevent them from being used by those studying the ministry. Government may constitutionally allow use of scholarships but not required to do so.

Religious Freedom Restoration Act

adopted to negate Smith Test and requires strict scrutiny for FE claims. Key provision states: Government shall not substantially burden a person’s exercise of religion even if the burden results from a rule of general applicability, except…[g]overnment may substantially burden a person’s exercise of religion only if it demonstrates that application of the burden to the person (1) is in furtherance of a compelling governmental interest; (2) is the least restrictive means of furthering that compelling government interest.”

City of Boerne v. Flores (1997):

RFRA uncon as applied to the states. Congress exceeded scope of § 5 powers of 14th A. by creating new rights. Laws may only prevent or remedy violation of some right already recognized.

Gonzales v. O Centro Espirita Beneficente Uniao Do

small religion that received communion w/ hoasca tea, which is a powerful illegal hallucinogen, sought declaratory judgment that use of tea protected by RFRA. SC stated: “RFRA requires the government to demonstrate that the compelling interest test is satisfied through application of the challenged law ‘to the person’”. Although controlling Schedule I drugs are dangerous there is no indication that Congress considered the harms posed by the sacramental use of the drug.

Strict Separation

to the greatest extent possible, government and religion should be separated. Object of 1st A. “was to create a complete and permanent separation of the spheres of religious activity and civil authority by comprehensively forbidding every form of public aid or support for religion.” Everson v. BOE (1947). When religion becomes involved in government, there is an inevitable coercion to participate in that faith. Nonbelievers feel excluded and unwelcome.

Neutrality Theory

government cannot favor religion over secularism or one religion over another.

Symbolic Endorsement” Test:

government violates EC if it symbolically endorses a particular religion or it generally endorses either religion or secularism, but it is very hard to determine what qualifies as endorsement

Capitol Square Review and Adv. Board v. Pinette (1995): `

issue was whether unconstitutional for government to prohibit KKK from erecting large cross in park across from OH statehouse. Majority determined that prohibition would violate KKK speech; allowing did not violate EC, but there was no majority opinion:
(a) O’Connor concurrence: allow cross b/c reasonable observer would not perceive it as endorsement of religion. There was a sign disclaiming government sponsorship to remove doubt of state approval. Test is applied from perspective of perceptions of well-educated, well-informed person who knows history of community and forum.
(b) Stevens dissent: symbolic endorsement exists if reasonable passerby would perceive government support of religion. Concurrence hypothetical observer is more educated than reasonable person and is therefore unreasonable.

Accommodation/Equality:

(Rehnquist, Scalia, Kennedy, Thomas, White; probably Roberts, Alito) EC should be interpreted to recognize importance of religion in society and accommodate its presence in government. Government violates EC only if it literally establishes a church, coerces religious participation, or favors one religion over another.

Lee v. Weisman

SC declared unconstitutional clergy-delivered prayers at public school graduation. Competing definitions of coercion under accomodationists:
(a) Kennedy majority: prayers are inherently coercive b/c there is great pressure on students to attend their graduation ceremonies and not to leave during the prayers.
(b) Scalia dissent: defined “coercion” more narrowly. “Coercion that was a hallmark of historical establishments of religion was coercion of religious orthodoxy and of financial support by force of law and threat of penalty.”

Allegheny Co. v. Greater Pittsburgh ACLU

case concerned 2 different religious displays: a crèche in stairway and a display in front of government building that included a X-mas tree, menorah, and a sign supporting liberty.
(1) Separationist: both displays violated EC; EC should be construed “to create a strong presumption against the display religious symbols on public property.”
(2) Neutrality: symbolic endorsement test applied finding that crèche violative of EC b/c it was alone on government property and likely to be interpreted as endorsement, but front display okay b/c it was representative of two different faiths and accompanied by a secular display.
(3) Accomodationist: both displays okay; “principles of EC and our Nation’s historic tradition of diversity and pluralism allow communities to make reasonable judgment respecting the accommodation or acknowledgment of holidays w/ both cultural and religious aspects.”

2. Government Discrimination Among Religions:

firmly established that discrimination among religious groups subject to strict scrutiny. If there is not discrimination, case discussed under Lemon test.

Larson v. Valente

SC declared unconstitutional MN law imposing registration and reporting requirements on charitable organizations, but exempted religious institutions that receive more than half of funding from member contributions. The law clearly granted denominational preferences and was subject to strict scrutiny. Ct could find no compelling interest.

BOE of Kiryas Joel Village School Dist. v. Grumet

SC declared unconstitutional state law that created separate school dist. for small village inhabited by Hasidic Jews b/c the government was impermissibly delegating governmental authority to a religious entity and the law created preference in helping school dist. separate itself from nonbelievers.

RI and Pa had laws that allowed payment to some religious schools for salaries and other stuff
1.Court has to draw the line in terms of establishment in regards to the evils that the EC was trying to fight- sponsorship, financial support and active involvement of the sovereign in religious activity-
2.Here the first prong is ok as the purpose was to merely enhance all secular education in schools covered by the mandatory attendance laws, but the effect is excessive entanglement with religion.
3.Must examine-
a.Character and purposes of the institutions that are benefited
b.The nature of the aid that the state provides
c.Resulting relationship between the gov't and the religious authority

(a) Stone v. Graham

SC declared unconstitutional law that 10 Commandments be posted in every pub school classroom b/c it “has no secular legislative purpose.”

(b) Wallace v. Jaffree

SC invalidated state law authorizing pub school teachers to hold one minute of silence for meditation or prayer b/c purpose was to reintroduce prayer into pub schools.

SC declared unconstitutional effort to post 10 Commandments in county buildings b/c content of Commandments and context of county’s actions left no doubt that it was acting w/ purpose of advancing religion.

(e) McGowan v. MD

SC upheld state law requiring businesses be closed on Sundays. Although law has religious origin, it is permissible b/c present purpose is to provide a uniform day of rest—a secular goal.

(b) Estate of Thornton v. Caldor

SC declared unconstitutional CT law providing that no person may be required by employer to work on his Sabbath b/c law created absolute and unqualified right for individuals to not work for religious reasons and thus favored religion over all other interests. Statute has primary effect of advancing a religious practice.

(c) Bishop of Church of LDS v. Amos

SC found constitutional exemption for religious orgs from Title VII’s prohibition against religion bases employment discrimination. Exemption met 1st prong b/c alleviating government interference w/ religious orgs ability to define mission permissible. 2nd prong met b/c it allows churches to advance religion, but the government itself does not advance religion through its own activities and influence.

(a) Agostoni v. Felton

public teachers may provide remedial education in parochial schools, but beyond that SC has not allowed government to pay teacher salaries in parochial schools b/c it would need to monitor whether teachers were teaching secular or religious material which would be excessive entanglement.

(b) Mitchell v. Helms

plurality held that government may give instructional equipment to parochial schools so long as it is not used for religious instruction.

Religious Speech and the First Amendment

In cases concerning government restriction of private religious speech on government property or w/ government funds b/c desire to avoid EC violation, SC has consistently held that excluding such religious speech is impermissible CB restriction of expression. Hence, if government action can be characterized as restriction on private religious speech, it can be challenged as violative of 1st A. and challenger has strong likelihood of prevailing.

Religious Group Access to School Facilities

general rule is that if forum is open to some groups, school may commits impermissible CB restriction by discriminating against religious groups.

Widmar v. Vincent

SC held that university that allowed student groups to use school buildings could not exclude religious student groups from access. University “discriminated against student groups and speakers based on their desire to use a generally open forum to engage in religious worship and discussion”; SC expressly rejected dissent argument that worship is unprotected. To so discriminate, exclusion must meet strict scrutiny. Passed Lemon test b/c served secular purpose providing forum for student meetings; effect of advancing religion incidental. No excessive entanglement as no state monitoring would be required.

BOE of W.side Comm. Schools v. Mergens

SC upholds constitutionality of Equal Access Act which requires that any public school that opens its doors to non-curricular student groups may not deny access to any students on basis of religious/political speech content. Passes Lemon test b/c preventing discrimination against religious/political speech was secular purpose. Effect not to advance religion b/c allowing religious groups to use public facilities is not likely to be perceived as endorsement. No entanglement as faculty not allowed to participate.

Lamb’s Chapel v. Center Moriches Union Free School Dist.

SC held that once school district allowed community groups to use facilities during evenings and weekends, religious groups could not be excluded. Avoiding EC violation not compelling interest here as there was no EC problem since teachers were not involved and religious activities were not carried on during school hrs. Still up in the air as to whether avoiding an EC violation is a compelling state interest.

Good News Club v. Milford Central School

SC invalidated elementary school’s exclusion of group’s using school property after school for Bible study. Similar reasoning as above, but case was controversial as earlier case line expanded to elementary school and religious activities were held directly after classes.

Rosenberger v. Rector and Visitors of UVA

SC declared unconstitutional UVA’s refusal to give student activity funds to Christian group that published religious magazine.
(1) Kennedy majority: (a) denial of funds impermissible CB discrimination against religious speech. Although government has wide discretion in allocation choices of scarce financial resources, “VP restrictions are [not] proper when the University does not itself speak or subsidize transmittal of a message it favors but instead expends funds to encourage a diversity of views from private speakers.” (b) Providing funds to the religious group would not violate EC. Kennedy cited 3 above cases—no difference between school using funds to operate facility that students may access and school paying 3rd party contractor to operate on its behalf. “There is no EC violation in the University’s honoring its duties under the Free Speech Clause.
(2) Souter dissent: emphasized that this was the first time that SC had ever allowed, let alone required, direct government financial subsidies to a religious group

Capitol Square Review and Adv. Board v. Pinette

issue was whether unconstitutional for government to prohibit KKK from erecting large cross in park across from OH statehouse. SC ruled that government violated free speech by excluding religious speech.
(1) Scalia majority: cited Widmar line as establishing “private religious speech, far from being a First Amendment orphan, is fully protected under the Free Speech Clause as secular private expression.” Cross exclusion was CB discrimination. Government does not violate EC when it permits religious speech on government property in same manner as secular speech is allowed.
(2) O’Connor concurrence: Cross exclusion was CB restriction; no danger that community would think that government was endorsing religion by allowing cross to stand. See above for standard.
(3) Stevens dissent: EC should be construed as construed as creating a strong presumption against installation of unattended religious symbols on public property. Observer coming across large cross in park would almost certainly think that it was endorsement; symbol or sign on property is generally though to express views of owner.

: Santa Fe Independent School Dist. v. Doe

Santa Fe Independent School Dist. v. Doe

McCollum v. BOE

SC declared unconstitutional school policy of allowing students to be released, w/ parental permission, to religious instruction classes conducted during regular school hrs in school building by outside teachers. Superintendent approved religious teachers and kept records; students not attending required to continue w/ regular classes. Unconstitutional b/c public school buildings used for dissemination of religious doctrines and compulsory school machinery used by Church to proselytize.

) Zorach v. Clauson

SC upheld BOE policy that allowed students to be released, during the school day, for religious instruction outside of school. Since government funds and facilities not used this was only accommodation of religion, not EC violation.

School Prayers and Bible Reading

SC has invalidated prayer in schools, including voluntary prayer led by instructors and moment of silence for silent prayer. Invalidated clergy prayers at graduation. SC has not ruled on government mandated moment of silent reflection or student delivered prayer at graduation.

Engel v. Vitale

SC invalidated school policy of having non denominational prayer written by state recited at beginning of school day. Prayer officially established religious beliefs—that it was nondenominational and voluntary was irrelevant. EC “stands as expression of principle on part of the Founders of our Constitution that religion is too personal, too sacred, too holy to permit its ‘unhallowed perversion’ by a civil magistrate.” Not antireligious as the government should stay out of writing official prayers.

Abington School Dist. v. Schempp

SC declared unconstitutional state law requiring reading of Bible verses and recitation of Lord’s Prayer at beginning of school day. Violative of EC b/c religious activities cannot be prescribed as part of curricular activities of students, conducted in school buildings, and supervised by teachers. Studying Bible in literature or comparative religion class okay.

Wallace v. Jaffree

SC invalidated AL law that authorized a moment of silence for “meditation or voluntary prayer.” Legislative history made it clear that purpose was to reintroduce prayer in schools—violative of prong 1 of Lemon test.

Lee v. Weisman

SC declared unconstitutional clergy delivered prayers at graduation. There is inherent coercion in allowing prayers at graduation. Although students not required to attend, it is an important event in life and students likely feel psychological pressure to remain for prayer. There are “heightened concerns with protecting freedom of conscience from subtle coercive pressure in the elementary and secondary schools. [What] to most believers may seem nothing more than a reasonable request that the nonbeliever respect their religious practices, in school context may appear to the nonbeliever or dissenter to be an attempt to employ the machinery of the State to enforce a religious orthodoxy.

Curricular Decisions:

SC has declared unconstitutional government decisions concerning curricula that were motivated by religious purposes. Cases usually center around teaching of so-called “creation science.”

Epperson v. AR `

SC declared unconstitutional AR law that made it unlawful to teach evolution b/c it was motivated by a religious purpose. There “is and can be no doubt that the First Amendment does not permit the State to require that teaching and learning must be tailored to the principles or prohibitions of ant religious sect or dogma.”

Edwards v. Aguillard

): SC declared unconstitutional LA law that prohibited teaching of evolution unless “creation science” taught alongside b/c “primary purpose was to change the science curriculum of public schools in order to provide persuasive advantage to a particular religious doctrine that rejects the factual basis of evolution in its entirety.

2. Van Orden v. Perry¬-

i.Rehnqusit plurality-
1.Downplays the role that Lemon v Kurtzman had played, but at least acknowledges its existence.
2.Long history of gov’t acknowledgement of religion-
a.There are limits- Stone v. Graham said that you could not post the TC’s in a classroom-
3.Here the placement is far more passive than placement in a classroom
a.Capitol grounds is a monument to several strands in the State’s political and legal history-
ii.Breyer- EC does not compel the complete purge of all religious items from the public sphere. Here the display is secular as well as religious-
1.Fact that over 40 years have passed with no complaint makes it clear that this monument does not give the impression that this is a state endorsement of religion
a.This is important in borderline cases where the question of divisivity will be key
iii.Stevens dissent- Message of the display is quite plain- The state endorses the divine code of the Judeo-Christian God-

2.Public recognition of God in speeches reflects the personal views of the speaker as well as the view of the Gov’t, so more is allowed here-
3.Original interpretation of the EC would lead to non-incorporation and only protection for Christianity
a. Have to interpret the clause based on not merely what the word meant to observers at the time of the founding, BUT instead by deriving from the Clause’s text and history the broad principles that remain valid today-

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